1

Forum Shopping Among Civil and Religious Courts:

Maintenance Suits in Present-Day Jerusalem

Ido Shahar, University of Haifa

idoshah@gmail.com

Work in progress – please do not cite without author's permission

Introduction

'Forum shopping', namely, "[t]he practice of choosing the most favourable

jurisdiction or court in which a claim may be heard",1 is a very common phenomenon

in situations of legal pluralism. In such situations, actors are often able to choose

between several legal forums available to them, and tend to prefer the forum which

they perceive as best serving their interests. And yet surprisingly, this practice has

received but meager attention among anthropologists studying legal pluralism. Only

few anthropological studies focused on this phenomenon, and but a handful

investigated questions such as: how do actors choose among legal forums? What

social norms and structures of power and meaning guide their choice and constrain it?

What are their considerations in making this choice? How does it affect the

management and outcome of the dispute? And what is the accumulated impact of

forum shopping on the forums involved?

In fact, except for Keebet von Benda-Beckmann's path-breaking article from

the early 1980s, “Forum Shopping and Shopping Forums – Dispute Settlement in a

Minangkabau Village in West Sumatra” (1981), one can hardly find an academic

publication that tackles these questions systematically. Of course, one can hit upon

dozens of references to "forum shopping" in anthropological studies dealing with

legal pluralism, but these references are relatively marginal to these studies. Forum

1 Black’s Law Dictionary, 2001 (2

nd pocket edition): 590.

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shopping appears in these works as an epiphenomenon of other, more important (or at

least more interesting) aspects of legal pluralism.2

So, why is it that anthropologists studying legal pluralism have generally

refrained from placing forum shopping in the limelight? Grappling with this puzzle is

beyond the scope of this paper.3 It is clear, however, that whereas anthropologists and

other social scientist have left the phenomenon of forum shopping unattended, legal

scholars have dealt with it quite extensively. A brief review of the legal literature on

forum shopping reveals that lawyers are interested in this phenomenon not so much as

a manifestation of legal pluralism, but as a symptom of 'conflict of laws' and 'choice

of laws'. Especially abundant, in this regard, is the study of forum shopping in the

United States – a country that has some fifty State judicial hierarchies, which operate

alongside several Federal Courts of general and specialist jurisdictions. This complex

structure of the American judicial system provides incentives to shop for a forum, to

the extent that the phenomenon has been described as "a national legal pastime" in the

United States (Alegro 1999: 82, quoting Wright 1967: 333).

Legal scholars studying forum shopping at the inter-state, state-federal, and

international levels tend to be highly critical of this phenomenon. They view it as a

disruptive practice that corrupts the legal system (e.g., LoPucki 2006, Warner 2007),

interferes with the "efficient" implementation of a unitary rule of law (e.g., Norwood

1996), and constitutes a grave infringement of the principle of equality under the law

(e.g., Weintraub 1999: 164). Accordingly, American law students have often been

taught that forum shopping is a terrible practice, performed only by the most devious

and manipulative of attorneys (Alegro 1999: 80). In recent years, however, some new

thinking about forum shopping appears to gain appeal among legal scholars. Several

scholars have recently called for reconsidering the negative views on this practice,

2 Some examples of studies that deal with forum shopping in this manner: Engel 1980, Molokomme

1996, Griffiths 1996, Turner 2006, Basu 2006. 3 By way of preliminary speculation, I suggest three reasons for the neglect of forum shopping in the

anthropological literature on legal pluralism. First, many studies of legal pluralism have tended to focus

on the macro level of analysis and on the interrelations between normative orders and legal systems,

rather than on the 'local', micro-level of individual actors' choices, actions, and interpretations (see

Merry 1988: 791). This could explain the lack of attention for forum shopping, which by definition has

to do with individual agency and perceptions. Second, anthropological studies of legal pluralism have

often preferred to focus on what was going on 'in the shadow of the law' (Galanter 1981, ==), rather

than on the legal process per se. Due to this interest in the broader framework of dispute resolution

(with its social, communal and political context), less attention was given to legal forum(s) as well as to

the choice among them. Third and last, it may be that the term "forum shopping" – with its

connotations of free market, free choice, and "rational consumerism" among legal forums – has

alienated social scientists, who are well aware that the interrelations between normative orders are

never devoid of power and hierarchy.

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emphasizing that some level of forum shopping is inevitable and that "the system

needs to live with it". Moreover, they have argued that some forms of forum shopping

should even be seen in positive light, and that the legal system may actually take

advantage of it to increase access to justice (see, e.g., Alegro 1999, French 2001,

Zywicki 2006).

Both the critical and the permissive legal scholars studying forum shopping,

however, share a common underlying assumption: both camps assume that forum

shopping involves a rational choice that takes place within a "free market" of legal

forums. Both assume – at least for the purpose of their legal analyses – that litigants

(and their lawyers) have a clear view of their goals, interests and priorities; are fully

knowledgeable of the legal forums available to them; have clear understanding of the

outcomes that may result from appealing to each of these forums; and moreover, are

free to choose among the forums regardless of any extra-legal considerations and

constraints. Even when the complexity of the litigants' considerations is

acknowledged, their decision is portrayed as the simple outcome of a rational

deliberation of pros and cons (see, e.g., Rozen-Zvi 1989, Hafner 2003). Because this

choice is perceived as self-evident – the inevitable result of a rational calculation

performed by a well-informed "consumer" – legal scholars seem to believe that there

is no point in directing attention to this decision-making process. Instead, they devote

all their efforts to analyzing the procedural and material loopholes that allow litigants

to shop for forums, and to evaluating the influence of this practice on the legal system

and on the administration of justice.

Without undermining the importance of a legal and normative examination of

forum shopping, I would like to argue that this phenomenon is far too widespread, and

far too consequential, to be left to the consideration of legal scholars alone. I therefore

call for a re-examination of this phenomenon from a socio-legal perspective. Such a

perspective would highlight the embeddedness of forum shopping practices within

social, cultural, and political contexts that are both enabling and constraining, and

hence would expose the limitations of legal scholars' rational-choice assumptions. It

would examine the rational choices of forum shoppers as bounded (Simon 1982), as

well as enabled, by the information they have at their disposal and by (competing)

normative orders and structures of power and meaning. As was so convincingly

shown by K. Von Benda Beckmann thirty years ago, the accumulative decisions of

litigants who shop for forums also exert significant influence on the actions and

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decisions of court officials.4 Consequently, the dialectical relations between "forum

shoppers" and "shopping forums" – between litigants' actions and their legal

environment, or in other words, between agency and structure (Giddens 1984) – is of

considerable interest as well.

To demonstrate the value of the suggested perspective on forum shopping, this

article presents a detailed analysis of forum shopping practices in present-day

Jerusalem. In contemporary Jerusalem, Muslim women who wish to obtain an

executable maintenance order can file a claim in two different legal forums: a civil

family court and a religious sharī‘a court, both of which reside in West Jerusalem.5

Both of these courts belong to the Israeli state legal system: they are both accountable

to Knesset legislation and to judgments of the Israeli High Court of Justice.

Nevertheless, they are also radically different in almost every respect: they employ

different bodies of law and different rules of procedure; they speak different

languages – Arabic in the sharī‘a court and Hebrew in the civil family court; and

perhaps most significant, each of them cultivates a different ethos and judicial agenda.

Whereas the family court embraces a strong Israeli, civil, and gender-equalizing

ethos, the sharī‘a court is generally characterized by a Palestinian, religious-Islamic,

and patriarchal ethos. Consequently, whereas the civil family court often provides

women with better financial arrangements than the sharī‘a court, it also constitutes an

alienating – sometimes even hostile – environment for Muslim-Palestinians, men and

women alike. The choice between these courts is therefore a complicated one, ridden

with meanings, tensions, and conflicts. This complexity makes this case study an

especially useful one for our purpose, that is, for the purpose of examining the social,

cultural, and political embeddedness of forum shopping practices.

The article is structured as follows. It begins with a brief review of the history

and legal status of sharī‘a courts and civil family courts in Israel. This review explains

how, beginning in 2001, a situation of intra-state legal pluralism (Woodman 1998,

1999) has emerged, in which some matters of Muslims' personal status can be

adjudicated by both court systems – the civil and the religious one. The review also

elaborates on the unique political and legal situation in Jerusalem, which makes legal

4 Interestingly, some legal scholars have also reached a similar conclusion. See e.g.

5 In fact, they can also choose to file claim in two other forums located in East Jerusalem: the Jordanian

sharī‘a court and the Palestinian sharī‘a court. However, the rulings of these courts are not recognized

by the Israeli authorities, and consequently the maintenance order, for example, will not be very useful.

For more on the unique situation of legal pluralism in contemporary Jerusalem, see Shahar,

forthcoming.

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pluralism and forum shopping in this city even more charged and intricate. The

subsequent section presents a close analysis of forum shopping among Muslim

Jerusalemite women seeking to obtain a maintenance order. This account is based on

five years of ethnographic fieldwork that I conducted in the Israeli sharī‘a court in

West Jerusalem, on conversations that I had with litigants, lawyers, shar‘ī advocates

and qadis, as well as on an examination of court cases. The section discusses the

perceptions, assumptions, and considerations that guide the process of forum

shopping, as well as some potential consequences of this process. The article then

concludes with a discussion of the implications of these findings for broader socio-

legal scholarship.

Sharī‘a Courts and Civil Family Courts in Israel

and the Peculiarities of Legal Pluralism in Jerusalem

Israeli Sharī‘a Courts

The system of sharī‘a courts in Israel consists of eight courts of first instance, which

are spread in towns across the country, and one sharī‘a court of appeals. Except for

the first instance court in Jerusalem, all other courts serve communities of Palestinian-

Israelis, who are citizens of Israel since 1948. The sharī‘a court in West Jerusalem,

which is the subject of this research, is unique in providing services to a population of

non-citizens – Muslim residents of East Jerusalem, which was occupied and annexed

in 1967. All the sharī‘a courts in Israel are presided by Muslim judges (qādīs), who

are chosen by a public committee and appointed by the President of Israel.6 They have

jurisdiction in all matters having to do with the personal status of Muslim citizens and

residents of Israel.

While the sharī‘a court system is part and parcel of the Israeli state legal

system, its exact relationship with this system is not easy to pin down. To a significant

degree, the domain of family law in Israel is a direct offspring of the Ottoman Millet

system (Friedmann 1975). The Millet system was 'a personal status regime', under

which some non-Muslim religious minorities (Jewish and several Christian

denominations) were granted extensive religious and cultural autonomy. These

religious communities were allowed to establish their own autonomous courts, which

6 The Qadies Law, 1961. See, Sefer Ha-Chukim (The Book of Laws), No. 139, P. 43.

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applied religious law, and which had jurisdiction in matters of personal status of their

respective community members (see Ursinus 1993). Under the British Mandate in

Palestine (1917-1948), the Millet system was largely preserved. Nevertheless, the

Muslim sharī‘a courts, which had previously been considered state courts, were now

introduced as autonomous religious courts into the Millet-like personal status regime.

This new arrangement was later inherited by the state of Israel (see Layish 1965).

The Israeli legislator did not annul the religious courts, nor did it create a

territorial family law. Instead, the Israeli legal system incorporated this dual court

structure, comprised of religious courts working side by side with civil courts. The

various religious courts continue to apply their religious codes (e.g., the Jewish

Halakha and the Muslim Sharī‘a), enjoying broad jurisdictions. In the case of Muslim

sharī‘a courts, the material law that they apply is the Ottoman Law of Family Rights

(OLFR) from 1917 – a shar‘ī code that was promulgated by the Ottoman Empire in

the very final moments of its existence.7

Until 2001, Muslims in Israel had been obliged to appeal, in almost all matters

of personal status, to sharī‘a courts, and could not resort to civil family courts. Forum

shopping was therefore not an option for them. By contrast, Jews and Christians were

allowed to choose whether to appeal to a civil or a religious court in most matters of

personal status.8 This situation aroused criticism among women's rights organizations,

which saw it as a discrimination against Muslim women. These organizations argued

that sharī‘a courts, with their patriarchal religious code, provide unsatisfactory

decisions from women's point of view. Among other things, they contended that

sharī‘a courts grant women smaller sums of maintenance than civil family courts.

After a long public campaign,9 they succeeded in bringing about legal reform: in

2001, the Knesset (the Israeli parliament) passed a legislation amendment that granted

civil family courts jurisdiction in most matters of Muslims' personal status, except for

marriage and divorce.10

The jurisdiction of sharī‘a courts in these matters was thus

reduced from exclusive to concurrent, and a situation of intra-state legal pluralism

7 This law is accompanied by the Ottoman Code of Procedures for Shari‘a Courts, 1917. About the

OLFR, see Tucker 1996. 8 Untangling the extremely difficult structure of Israeli family law is beyond the scope of this article.

Suffice it to say that for reasons of historical continuity, the shari‘a courts in Israel had had broader

jurisdiction than any other religious courts in the country (see Layish 1965). 9 For more on this campaign, see Shahar 2007.

10 Ref===

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(Woodman, 1998, 1999) emerged. The door was now open to forum shopping

between sharī‘a courts and civil family courts.

Israeli Civil Family Courts

Civil family courts were only established in Israel quite recently, in 1995. The main

purpose of their founding was to concentrate the jurisdictions of the diverse civil

courts that had been dealing with family disputes within the jurisdiction of a single

civil venue. The Family Courts Law was therefore a centralizing law, designed to

solve the problem of “split hearings” in matters having to do with the same

matrimonial dispute (Arbel & Geifman 1997: 432).11

The establishment of integrative family courts constituted a major reform in

the field of family law in Israel, which affected not only the institutional structure of

the judicial system but also procedural and material laws (ibid; see also Geifman

1998: iii). However, this reform was not intended – as specifically noted in article 25

of the Family Courts Law – to reduce the jurisdictions of the religious courts.12

Thus,

the enactment of the Family Courts Law, 5755-1995, was not meant to change the

basic millet-like features of the personal-status regime in Israel.

The judges in family courts are, of course, civil judges, who are by and large

Jewish.13

The language spoken in these courts is Hebrew, although the courts must

provide translation services to and from Arabic to litigants who do not understand

Hebrew. The courts apply a civil code of procedure and a civil code of evidence rules,

as well as a set of civil material laws, which are for the most part oriented towards

achieving equality between the sexes.14

In matters that are not dealt with by concrete

civil legislation, the family courts are supposed to employ the religious code of the

litigants (i.e., if litigants are Jewish, the Jewish Halakha should be applied; if litigants

are Muslims, the sharī‘a code should apply). However, in effect, because of the

11

According to Arbel and Geifman (1997: 432), the old arrangements “opened room for manipulations

employed by litigants, and invited multiplicity of pleas and suits, which were only meant to thwart the

legal procedure, or at least meant to serve as a tactical move, aimed to put pressure [on the other party]

in order to achieve a better result”. Thus, it may be argued that at least one of the purposes of the law

was to reduce forum shopping in the field of family law. For a succinct criticism of the plurality of

legal procedures in the field of family law in Israel, see Rozen-Zvi 1990: 203-209. 12

Sefer Ha-Chukim 5775-1995, 1537, p. 393. 13

According to the data provided by the Judicial Authority website, there is currently only one non-

Jewish judge, out of 51 judges presiding in family courts. See:

http://elyon1.court.gov.il/heb/cv/fe_html_out/menus/mnu_judges/mnu_all.htm (visited 27.9.10). 14

E.g.: Age of Marriage Law, 5710-1950, Women’s Equal Rights Law, 5711-1951, Capacity and

Guardianship Law, 5722-1962, Succession Law, 5725-1965, Spouses (Property Relations) Law, 5733-

1973.

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different codes of procedure and evidence rules, and because civil judges usually lack

education in religious law (and all the more so, in sharī‘a law), their decisions tend to

diverge significantly from those of the religious courts. As Israeli legal scholars have

long observed, in matters of personal status in Israel, "[t]he law follows the judge:

there is no fixed material law as in other branches of the law; rather, the law in this

sphere is, as it were, a function of the judge" (Silberg 1965: 6, quoting a Supreme

Court decision).

Legal Pluralism in Jerusalem

Jerusalem has justly been likened to a keg of gunpowder, threatening to explode at

any given moment (Friedland and Hecht 1996: 3). Political, religious, and legal

tensions sore in this city, which is not only sacred to the three monotheistic religions,

but also at the very crux of the Israeli-Palestinian conflict. No wonder, therefore, that

legal pluralism is particularly conspicuous in this city, and that the phenomenon of

forum shopping in Jerusalem is especially complicated and intricate.

Between 1948 and 1967, Jerusalem was a divided city with a wall and a buffer

zone in its middle: the Western part of the city was controlled by Israel, and the

Eastern part by the Hashemite kingdom of Jordan. West Jerusalem was almost

exclusively Jewish, with only several thousand Palestinians dwelling in a few urban

neighborhoods (e.g. Beit Ṣafāfa) and in some semi-urban villages (e.g. Abu Gosh).15

The abrupt Israeli occupation of the Golan Heights, the Gaza Strip and the West

Bank, including East Jerusalem, in June 1967 changed this situation altogether.

Unlike the rest of the occupied territories, which were put under "temporary" military

regime, East Jerusalem had a different fate. The euphoric Israeli leadership lost no

time in declaring that the "united city" will never be divided again. Hasty Knesset

(Israeli parliament) legislation enabled the annexation of East Jerusalem, and on June

28th

, just three weeks after the war had ended, the Israeli Minister of Interior Affairs

issued an ordinance extending the municipal boundaries of West Jerusalem to include

the former Jordanian city, as well as several villages in the city's outskirts (Brecher

1978: 25-26). Israeli law was extended to the annexed area, and the Palestinian

15

According to Palestinian sources, 37 of the 41 Palestinian villages surrounding West Jerusalem were

destroyed, and 80,000 Palestinians were driven out of or fled from the West Jerusalem area following

the war. See, http://www.palestine-un.org/news/may97_jer.html

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residents of this area – a population of approximately 70,00016

– were granted the

legal status of “permanent residents” in Israel.17

In terms of their personal status, the 56,000 Jerusalemite Muslims (out of the

70,000 Palestinians that were granted Israeli residency) were subjected to the rulings

of the Israeli sharī‘a court in Jaffa, some 50 kilometers west of Jerusalem. Since Israel

did not terminated the operation of a Jordanian-administered sharī‘a court in occupied

East Jerusalem, an unusual situation of inter-state legal pluralism was created in the

city. Thus, Muslim Jerusalemites could shop among forums belonging to two

different state legal systems.

Recognizing that the continued operation of an independent Jordanian court

undermines Israeli sovereignty in Jerusalem, Israeli authorities invested great efforts

in trying to co-opt this court and to bring it under the aegis of the Israeli legal system.

Yet the Jordanian court's functionaries, who regarded any cooperation with the Israeli

authorities as an implicit approval of the occupation and annexation of Jerusalem,

consistently refused to subdue. Frustrated with this situation, Israeli authorities finally

decided to establish an Israeli sharī‘a court in west Jerusalem, and to stop recognizing

the decisions and orders given by the Jordanian court. By this double-edged policy,

they were aiming to compel Jerusalemite Muslims to attend an Israeli court in all

matters of personal status.18

At first the Muslim population of Jerusalem was highly suspicious towards

this new court, seeing it as an institution that was established as part of a more general

effort to diminish Muslim presence in the Holy City (see Welchman 1990: 95-96).

Nevertheless, after several years, Muslim Jerusalemites began to recognize the

benefits that may derive from this court. The most significant advantage was that its

decisions, unlike those of the Jordanian court, were recognized and executed by the

Israeli authorities. But moreover, as Muslim litigants in this court soon discovered,

despite the fact that it is an Israeli court, it does not necessarily succumb to the Israeli

agenda of "Judaization of Jerusalem", which usually characterizes the policy of Israeli

16

Layish (1975: 4-5) estimates the number of Palestinians within the expanded municipal borders of

Jerusalem by 69,000; Schmelz (1981: 65) gives the figure of 71,000. 17

According to Israeli law, permanent residents of the state of Israel may carry an Israeli ID card, but

are not allowed to participate in elections to the parliament. They have freedom of access and work in

Israel, and they are entitled to all the social benefits of citizenship (e.g., national Insurance allowances,

health care, etc.). Nevertheless, unlike full-fledged citizenship, permanent residency may expire if its

holder resides out of Israel for more than seven years. 18

About this episode, see Shahar, forthcoming.

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authorities in the city. 19

Consequently, the number of files that this court dealt with

soared. Today, the court serves a population of more than 250,000 Muslims in the

district of Jerusalem,20

and has the largest workload among all the sharī‘a courts in the

country.

The inter-relations between the Israeli sharī‘a court and the Jordanian sharī‘a

court – which continues to operate in East Jerusalem until this very day – are complex

and multifaceted, but they do not constitute the subject of this paper. Instead, the

empirical section below focuses on the two courts which provide, under Israeli rule,

executable orders in matters of personal status: the Israeli sharī‘a court and the civil

family court. Furthermore, the article focuses on the phenomenon of forum shopping

from the point of view of the litigants, leaving unattended the institutional level of

analysis. In other words, the effects of forum shopping on the judicial policies of the

two courts under investigation will not be dealt with. Let us move now for a close

scrutiny of the considerations that guide potential litigants who seek an executable

maintenance order. As I will show below, such choices, which are performed on a

regular basis by women seeking maintenance orders, may indeed be highly

consequential.

Forum Shopping in Jerusalem, or:

How to Decide Where to File a Maintenance Suit?21

Let us begin with a short excerpt taken from my field notes, written at the Israeli

sharī‘a court in West Jerusalem. The date is Tuesday, 7 April, 2004:

I arrived to the court in the morning [...] Hearings began at 9:00. At

11:00 Qadi Zibdi left the room and went to a meeting of all the judges at

the sharī‘a court of appeals. Having nothing better to do, I sat on the

green sofa in the court's waiting room, and chitchatted with Akram al-

maliki, a shar‘ī advocate friend […]. When there was a moment of

silence, a middle aged man who sat nearby approached me and inquired

19

For a detailed discussion of this issue see Shahar, forthcoming. 20

According to the Central Bureau of Statistics, in 2008 the number of Muslims within the Israeli-

defined borders of Jerusalem was 255,700 (95% of the Palestinian population in the city, which

constitutes 35% of the entire population of Jerusalem). 21

All names mentioned are pseudonyms.

11

who I am. I explained that I'm an anthropologist, conducting research in

the court […] I excused myself and went to talk with him. I asked him

why is he there, and he replied that he is escorting his daughter, who

should have a hearing concerning a maintenance claim that she had filed

against her husband. He said that his daughter had left the nuptial house

with her two young children (aged four and two) about a month ago, after

she had been 'viciously attacked' by her mother in law. I asked why it had

happened, and he said:

"I don't know. This is how she's like. They [i.e., his daughter and her

mother in law] quarrel all the time. She [the mother in law] doesn't like

how she [his daughter] treats the children, she doesn't like how she

cooks, she doesn't like how she dresses. One morning she assaulted her

and tore her dress".

And what did her husband do?

"Her husband doesn't protect her. He's afraid of his mother […] so she

ran away from there to me". […]

I asked him why they chose to file the maintenance claim in this court,

and he answered:

"I don’t know. My uncle knows the lawyer Abu Sha‘bān (al-muḥāmī Abū

Sha‘bān), and he recommended him. We went to see him in his office,

and he said that we should file a claim here. He is our lawyer".

While my interlocutor described Abu Sha‘bān as a lawyer, this was not in fact the

case. The man was apparently unaware that Abu Sha‘bān was not a lawyer (muḥāmi)

but a shar‘ī advocate (murāfi‘ shar‘ī) – an attorney who is allowed to represent

customers in sharī‘a courts alone, and not in any other court.22

This means that once

my interlocutor decided to contact Abu Sha‘bān, his ability to shop for a forum that

would best serve the interests of his daughter was effectively reduced to zero.

This brief excerpt therefore brings up a very important point, which should be

highlighted at the beginning of this analysis: many of the litigants whom I came

across in the sharī‘a court did not, in fact, practice forum shopping. These people

were not well-informed as to the intricacies of the dual court system in the domain of

22

On the difference between lawyers and shar‘ī advocates, and on the often tense relationship between

them, see Shahar, forthcoming.

12

family law, and some of them were not even aware of the possibility of choosing

among different legal forums. Consequently, they had no practical ability, nor

incentive, to shop for a forum. Rather, they were channeled to a specific forum by

chance, coincidence, and no less important – social networks and references, such as

the uncle's recommendation to contact his acquaintance, in the excerpt above.

And still, while some of those who represent litigants in the sharī‘a court are

indeed shar‘ī advocates, others are lawyers – well familiar with both the sharī‘a and

the civil courts. The latter often make sure that their clients are informed of the

various options available to them. One of the lawyers who used to represent clients

both at the sharī‘a court and at the civil family court once told me:

I recommend to my clients to appeal to the family courts, since rules of

evidence are less restrictive there. [In the family court] it's enough to

have a deposition [stating that the husband had beaten his wife] and a

medical report signed by a doctor in order to obtain a maintenance

judgment and a protection order. In the sharī‘a court you have to

present evidence, to bring witnesses… it's much more difficult

(conversation with muhami Mudhi al-Rishk, 26 May, 2002).

Indeed, as indicated by case no. 509/02, a wife appealing to the sharī‘a court may fail

to substantiate her claims for maintenance payments due to insufficient evidence. In

this particular case, a young woman sued her much older husband, claiming that he,

together with his first wife and her adult children, had all attacked her in the nuptial

house and had injured her so badly that she was forced to attend the hospital several

times for treatment. According to her statement of claim, she has not returned to the

nuptial house ever since this incident (which had occurred three and a half months

earlier), and she stayed instead in a “state of anger” (ḥarḍane) in her father’s house.

Her husband, she further argued, had expressed no will to bring her back to the nuptial

house, for he has never sent a delegation of notables (jāhah) in order to try and settle

the dispute. She therefore asked the court to establish that she is entitled to

maintenance, and to determine the sum of maintenance payments as it sees fit.

13

On the day of the hearing (29 April, 2002),23

both husband and wife – who

were represented by lawyers – attended the court. The young wife was covered from

head to toe by a black robe, her face veiled by a ḥijāb, and even her hands wrapped in

black gloves; her husband, a man of about sixty years of age, was dressed in a plain-

looking outfit, and a big white knitted skullcap on his bald head. Both the husband

and the wife were accompanied by relatives (the husband by three of his grown-up

children, and the wife by her mother and brother), and the two parties expressed their

mutual antagonism by constantly heckling and taunting each other. The difficulty

faced by the wife was that the presumed beating had occurred in the nuptial house,

and there were no witnesses to the event. Instead of witnesses, she tried to support her

claim by presenting corroborating textual evidence: a signed confirmation that she had

been taken by ambulance – in a specific time, from a specific location – to a hospital;

some medical reports of her injury and treatment; and a copy of a complaint against

her husband that she had filed at the police station.

The husband’s attorney was not impressed by this evidence, and claimed that

none of it proves that the wife was indeed beaten by her husband. He further stated

that for all we know, she could have done this physical damage to herself, and then

called an ambulance and filed a false complaint in the police. In response to these

suggestions, a small insurgency developed in the courtroom, as the parties began

shouting and cursing each other. Only after several minutes of rumpus did the qadi –

aided by the lawyers – manage to restore order in the court room. He rebuked the

husband’s attorney for suggesting that the wife fabricated her complaint, but he

accepted his assertion that the evidence supplied by the plaintiff does not substantiate

her claims. The qadi thus determined that the wife failed to prove her claims, and that

the husband may now take an oath of innocence.24

The husband took the oath, and the

qadi ruled that the wife's suit for maintenance payments is hereby repelled.

23

This was in fact the second hearing in this case. I did not attend the first one, which had taken place

on 11 April, two and a half weeks earlier. During the first hearing – according to the court minute – the

plaintiff proclaimed her statement of claim, and the defendant responded to it by denying that he ever

beat his wife. He then argued that there was no proper shar‘ī justification for his wife’s leaving of the

nuptial house, and asked the court to determine, therefore, that she is not entitled to maintenance. The

court ordered the wife to supply evidence supporting her claims in the next hearing, which was

scheduled for 29 April, 2002. 24

Taking an oath (ḥalf yamīn) is a well-known legal procedure in Islamic law, which can be practiced

in various circumstances. A famous maxim states that “the burden of proof (by testimony) lies upon the

one who makes the allegation, and the oath belongs to him who denies” (al-bayyina ‘alā al- mudā‘ī

wa’l-yamīn ‘alā man ankara). For a general discussion of the mechanism of oath in Islamic law, see

EI2, s.v. Bayyina (R. Brunschvig).

14

This example demonstrates that the stricter evidence rules that are applied in

the Israeli sharī‘a courts might indeed present difficulties to women, and might

prevent them from earning maintenance payments – as argued by the lawyer cited

above. Another disadvantage of sharī‘a courts from the perspective of women litigants

has to do with the average sums of maintenance that these tribunals grant. It is

common knowledge among attorneys, as well as among women litigants, that a

maintenance suit filed in the civil family court will probably yield larger sums of

maintenance payments than a similar suit filed in the sharī‘a court. Although there has

been a significant increase in the average sums of maintenance granted by sharī‘a

courts over the last decade,25

the civil family courts still have the upper hand. This gap

can be explained, perhaps, by the socio-economic context: the population that attends

the sharī‘a court (that is, the Arab-Muslim population in Jerusalem) usually comes

from lower socio-economic strata than the population attending the civil family court

(that is, a mostly secular Jewish population). As a result, the sums of maintenance

payments – requested, and thence adjudicated – in the family court are necessarily

higher.

But there is also another explanation for the larger sums of maintenance

adjudicated by the civil family courts: these – unlike the sharī‘a courts – have set a

minimum sum of maintenance to be granted to entitled wives, regardless of their

husbands' financial situation and of their capacity to pay such sums.26

The sharī‘a

courts, on the other hand, which “do not wish to disintegrate families”, as one of the

lawyers told me, “find ways to reduce the sums of maintenance adjudicated to wives

and minors”.27

The underlying assumption is that if the maintenance sums would be

25

As I argued elsewhere (Shahar 2007), the increase should be attributed primarily to the effective

pressures exerted by women's rights organizations, and to shari'a courts' attempts to prevent the

departure of (women) litigants in favor of the "rival" family court. 26

Conveniently, the minimum sums set by the civil family courts are exactly the sums of pensions

determined by the National Insurance Institute (henceforth: NII). Current sums paid by the NII are as

follows (in Israeli Shekels): a woman without children, 1,393; a woman with one child, 2,333; and a

woman with two children or more, 2,716. According to NII regulations, maintenance payments are

delivered to those women entitled to maintenance by court judgment. The institute pays the entitled

woman the sum set by the court or the sum set by NII regulations – the smaller of the two. The NII

pays entitled women a monthly payment, and then demands refunds from the husband. If the NII

succeeds in collecting the full maintenance sum decided by the court, and this sum is greater than the

sum paid by the NII, those entitled to the maintenance payment receive the difference between these

two sums. See the NII website:

http://www.btl.gov.il/English/btl_indx.asp?name=newbenefits/alimony.htm. 27

Interestingly, the same phenomenon seems to occur in the rabbinical courts as well. For statistical

data indicating that sums of maintenance are significantly higher in civil family courts than in

rabbinical courts, see Hacker 2003: 166, n. 63.

15

higher, husbands would be motivated to divorce and hence avoid the need to pay their

wives.28

Therefore, ideological preferences drive the sharī‘a courts to determine lower

maintenance payments.

Thus far, we have recounted two very obvious advantages – from the

viewpoint of Muslim women – of filing a maintenance suit in a civil family court,

rather than in a sharī‘a court. And yet, there are also some noticeable advantages to

sharī‘a courts. First of all, the civil family courts are often regarded as hostile and

uninviting legal institutions for Muslim litigants, men and women alike. The language

of litigation in these courts, as mentioned above, is Hebrew; security measures are

stringent; and the procedural and material law is alien to Islamic norms. The sharī‘a

courts, by contrast, are perceived as much more familiar and accessible: litigation is

held in Arabic; security measures are relatively loose; and procedural and material

laws are based on shar‘ī traditional concepts.

Another, more concrete advantage of the sharī‘a courts in cases of

maintenance suits has to do with their more efficient and prompt dealing with these

suits. As one of the attorneys told me,

[I]f a client is [financially] strained, I recommend that she appeal to the

sharī‘a court. Here you may get a temporary maintenance order (qarār

mu’aqqat bi’l-nafaqa) within a day, while in the family court it may

take a full month (conversation with Mudhi al-Rishk, 26 May, 2002).

When I asked what may be the reasons for this difference between the two courts, the

attorney explained that it takes shorter time to issue a maintenance order at the sharī‘a

court since the shar‘ī procedure, unlike the civil procedure, does not require to inform

the defendant's husband about the suit before issuing a temporary order. As long as a

guarantor (Kāfil) commits himself to refunding maintenance payments given to the

wife (in case it will eventually be decided that she had not been entitled to these

payments), the court will issue a temporary maintenance order, solely on the grounds

of the wife’s deposition. Such a procedure is very common, and as far as I know,

guarantors are seldom required to refund maintenance payments.

28

The Ottoman Law of Family Rights determines (article ==) that a divorcee is entitled to maintenance

only for a period of three months, during which she is not allowed to remarry (the 'idda period). After

this period, her right for maintenance is void.

16

Finally, some differences between the sharī‘a court and the family court can be

either advantageous to women or harmful to them – depending on their personal

wishes and intentions. More specifically, the choice of a legal forum can exert, in

itself, a significant influence on the matrimonial dispute and on the future of the

marital life. While this effect could be desired by some women, it could be negative to

others.

Although there are no credible statistical data in this regard, the general belief

among attorneys working in the sharī‘a court is that matrimonial disputes that are

adjudicated in the civil family court are much more likely to end in divorce. One of

the lawyers explained:

I ask my client [the wife], what do you want to achieve? Do you want

reconciliation with your husband? Or do you wish for a divorce? If she

says that she wants a divorce, I file a suit in the family court; if she

says that she wants reconciliation, I file a suit here (conversation with

'Ali Ghazlan, 22 March, 2004).

And another lawyer told me:

Every woman in Jerusalem whose husband "caressed" her now goes to

complain at the police station and to file a suit in the family court. She

gets maintenance and a protection order, and the husband [gets] a

criminal record, and sits in prison […]. I went to Luba [a police officer

in charge of family violence cases in the Jerusalem district, I.S.] and

told her, "You divorce half of Jerusalem". She said, "Why?" I told her,

"Because you charge husbands for beating their wives too easily. You

destroy Muslim families this way" (conversation with Nawaf al-

Salaymi, 8 June, 2004).

These comments by lawyers illustrate that the considerations that guide litigants when

shopping for a forum can indeed be very complex. Since estranged Muslim women in

Jerusalem often find refuge among their agnatic families (that is, in the houses of their

fathers, uncles or brothers), and since their agnatic families usually provide for their

basic needs, it appears that a maintenance suit can sometimes serve not only as a cry

17

for financial help, but also as an effective device for pressuring an obstinate husband.

Indeed, if a woman dwells in "a state of anger" (ḥarḍane) in her agnatic family house

for a long period of time (let's say, several months), and if the husband does not seem

to be in a hurry to end the dispute – i.e., to divorce his wife or to invite her back to the

nuptial house – then the wife will need some sort of “leverage” in order to push the

husband into action.

The most effective leverage is a maintenance suit. It is an effective maneuver

for pressuring husbands, since it is rather difficult to evade payments that were

ordered by a court.29

Thus, a maintenance order may force the husband either to

reconcile with his wife or to divorce her. Many maintenance suits that are filed in the

sharī‘a court are therefore pressuring devices, and all the more so, probably, when a

Muslim woman files a maintenance suit at the civil family court.

But why is it that an appeal to the family court is more likely to bring about a

divorce than an appeal to the sharī‘a court? There are three possible explanations.

First, the sharī‘a court in West Jerusalem – perhaps like other sharī‘a courts in other

times and places – maintains a strong preference for mediation and conciliation over

adjudication. As noted by many observers of sharī‘a courts (e.g., Rosen 1989; Mir-

Hosseini 1993: 61-62; Layish 1975: 106, 181), qadis often make far-reaching efforts

to bring about reconciliation and compromise settlements between spouses.30

In line

with this agenda, the qadis in Israeli sharī‘a courts make extensive use of article 210

of the codex of Qadri Basha.31

This article enables the qadis to refer disputing parties

to semi-institutional mediation: whatever the classification of the dispute, the qadi

may offer the parties to withhold legal litigation, and to “give reconciliation a

chance”.32

While a tendency for resolution without adjudication is also evident in civil

29

Even if a husband refuses to pay maintenance, the wife may hand the judgment to the National

Insurance Institute (NII) and ask for an allowance. Based on the court's judgment, the NII will provide

the wife with a pension, and will try to collect the money from the husband with the aid of the

Execution Office. 30

Goitein and Ben-Shemesh (1957: 39-40) speculate that qadis’ tendency to prefer conciliations and

mutual agreements over issuing judgments emanates from an established tradition of avoiding the

application of the holy shari‘a for fear of distorting it. Whatever the reason, it is clear that a unique

version of the “harmony ideology” (see Nader 1991) is also prevalent in shari‘a courts. 31

Qadri Basha was an Egyptian jurist, who compiled a private code of personal status laws, titled Kitāb

al-Aḥkām al-Shar‘īyya fī al-Aḥwāl al-Shakhṣiyya ‘alā Madhhab al-Imām Abī Ḥanīfa al-Nu‘mān. Qadri

Basha's codex serves the qadis in cases where the Ottoman codes do not supply a solution. The use of

this codex is a matter of personal discretion of each qadi. See Layish 1975: 3; Sha’shu’a 1981: 16-19. 32

If the parties agree, two mediators are nominated and informal mediation begins. If reconciliation is

achieved, the file is deleted from the court's schedule; if it fails, the parties return to legal litigation, to

the exact point in which it had previously been halted. For examples of files in the Israeli shari‘a court

18

family courts in recent years,33

it seems that generally, the relatively pliable informal

procedures of the sharī‘a court are more prone to bring about conciliation than the

relatively formal procedures of the family court.

Second, as clearly reflected in the comments of the lawyers’ quoted above, the

two courts draw on very different cultural and ideological assumptions with regard the

status and roles of men and women in the marital unit. While ”occasional” beating of

a wife (as long as it is not brutal beating, darbān mubarriḥān) is perceived by many

Muslim Jerusalemites as a legitimate, although undesirable behavior,34

it is perceived

as an abominable, not to say criminal behavior by the common family court judge.

Now, even if the judges presiding in the two courts share exactly the same progressive

views on gender relations, the fact that they serve different populations, which

embrace different values and norm systems, may produce very different judicial

policies in such cases. Thus, it is reasonable to assume that family disputes that

involve violence towards the wife35

have a much greater chance of ending in

conciliation if tried by the sharī‘a court, rather than by the civil family court.

Third and last, filing a maintenance suit in the civil family court may be more

likely to lead to a divorce due to the religious, cultural and political meaning attached

to this act among the Muslim population of Jerusalem. As argued by many scholars in

the field of law and society, "going to the law" (Engel 1980: 430), namely, filing a

claim in a court, sometimes attests to a sharp escalation of the dispute, for it draws the

marital problems between the spouses from the private sphere into the public one. As

a result, people often postpone this extreme course of action as much as possible,

of West Jerusalem in which such a procedure was resorted to, see 104/2000, 162/2000, 110/2002,

2883/2003, 532/2004. 33

See Arbel and Geifman 1997: 438-441. 34

This statement is based on my impression from dozens of conversations with litigants and legal

professionals. Thus, for example, several of my male interlocutors paraphrased a well known Qur'anic

verse (Surat al-Nisā’, verse 34), which instructs husbands how to treat a “wrongheaded” wife. They

explained to me that "if a husband has problems with his wife, what should he do? First, he should

approach her and explain to her patiently and calmly what she did wrong. If this doesn’t work, he

should move to another bed for a couple of days, and refrain from sleeping with his wife. If this

measure doesn’t help either, he should seek the assistance of ahl al-khair (mediators), who will

intervene in the dispute, trying to achieve reconciliation. If this doesn't help, and his wife is still

rebellious and refuses to obey him, he may resort to the most persuasive method: educational beating

(darb ta’dibi)”. Of course, the fact that such views are held – again, to my impression – by the majority

of the litigants (men and women alike) does not mean that there are no liberal and feminist circles

among Muslim Jerusalemites, which fiercely oppose such views. 35

My impression is that some acts of physical violence (e.g., slapping, shoving) are very common in

the context of matrimonial disputes among the Muslim-Arab population of contemporary Jerusalem.

Complains of such behaviors, as well as of “verbal abuse”, can probably be found in nine out of ten

statements of claim (although I have not checked this systematically).

19

hoping that their problems be solved in other ways (see, for example, Merry 1991: 3,

Engel 1980: 429-431). Still, there are degrees of exteriorization of private problems,

and appeals to different forums may be perceived as involving different degrees of

“going public” and different degrees of defiance.

In the case under focus, a woman's decision to appeal to the civil family court

rather than to the sharī‘a court might be perceived as more defiant and destructive due

to the religious implications of this act. From a religious point of view, an appeal to a

secular court rather than to a religious one is, of course, highly problematic. Indeed,

among some sectors of the Palestinian population in East Jerusalem, the religious

legitimacy of the Israeli sharī‘a court in West Jerusalem is questionable as well.36

Nevertheless, in comparison with the total lack of legitimacy of its rival family court,

it fairs quite well.

Yet another reason why resorting to the civil family court may be perceived as

radical is the meaning of this act from a national-Palestinian point of view. Although

both courts – the sharī‘a court and the civil family court – belong to the Israeli state

legal system, the former has gained legitimacy and familiarity over the years. It is

managed and presided by Palestinian Israelis, the language spoken in it is Arabic, and

in many respects it is sympathetic to the Palestinians and their national identity and

interests. Preferring a 'Zionist'-secular court over the sharī‘a court can thus be

perceived as insolent not only on religious grounds, but also on nationalist grounds.

Muslim husbands in present-day Jerusalem may therefore perceive an appeal

to the civil family court as a move that is intended to escalate the conflict. Recourse to

the sharī‘a court, by contrast, is more likely to be viewed as less radical and less

offensive, leaving the “door of reconciliation” (bāb al-musalāḥa) relatively open.

Conclusion

This research has demonstrated that practices of forum shopping are deeply entangled

in social, cultural and political contexts. Contextual factors can determine, to begin

with, whether a person even knows that she or he can resort to forum shopping, and

whether she or he has the resources to do so. These factors also affect the complicated

36

In fact, my impression was that many of the litigants, as well as many of the lawyers and the shar‘ī

advocates perceived this court to a "contaminated" shari'a court, which integrates the shari'a with civil,

non-Islamic codes. For a more detailed discussion of this point, see Shahar forthcoming.

21

considerations that guide litigants and their legal advisors in choosing a forum.

Finally, they shape the consequences of this choice. And indeed, this research has

shown that the choice of a forum can be highly consequential. In the case of Muslim

Jerusalemite women seeking to obtain a maintenance order, the choice of a forum

may determine the amount of the maintenance payment, the time of its award, and

moreover, whether it will be awarded at all. Furthermore, this choice may determine

whether the end result of the legal altercation would be reconciliation or dissolution of

the litigant's marriage. The first conclusion that I would like to draw from this

research, therefore, is that forum shopping is indeed a complicated and consequential

socio-legal phenomenon, worthy of the attention of socio-legal scholars.

A second conclusion concerns the limits of the rational choice model, which

seem to lie at the basis of so much legal discourse on forum shopping. This research

highlighted the "bounded" nature of the rational deliberations of forum shoppers.

Rather than being a free choice taken under conditions of full knowledge, clear

priorities, and unlimited resources, forum shopping is bounded by partial information

and uncertain priorities and results. Furthermore, forum shopping is guided not only

by narrow, technical-instrumental rationality, but also by a different, broader kind of

rationality that is morally and ideologically informed. Put differently, forum shopping

is guided not only be instrumentally rational (zweckrational) action, in Weber's (1978)

terms, but also by value-rational (wertrational) action.

In the case of maintenance suits of Muslim Jerusalemite women, choosing a

forum may be based on narrow, instrumental considerations such as which forum is

more likely to determine a large maintenance payment, or what choice would exert

greater pressure on an obstinate husband (i.e., zweckrational). It may also be based,

however, on broader moral and ideological considerations, such as a preference to

negotiate one's matrimonial dispute within the parameters of a Muslim-Palestinian

normative order, rather than an Israeli-secular one (i.e., wertrational). It should be

noted, however, that wertrational and zweckrational are not always distinguishable in

practice. It may very well be, for example, that in the context of a matrimonial

dispute, when accusations and counter-accusations regarding immoral behavior are

blown into the air, litigants are particularly cautious not to supply ammunition to their

rival spouse. Consequently, a woman may avoid appealing to the civil family court

not only based on her own moral-ideological preferences, but also based on the

21

narrowly instrumental consideration that she might be morally condemned for doing

so, and hence lose points in the battle.

A third, related conclusion is that in some situations of forum shopping,

preferring one court over the other may be imbued with cultural and political

meanings, which may, in themselves, affect the outcomes of the legal process. In the

case study presented above, filing a maintenance claim in the family court appears to

be more likely to bring about the dissolution of the marriage than filing such a claim

in the sharī‘a court. This is so not only because of the characteristics of the forums in

question – the material laws they apply, their procedural codes, their organizational

cultures and their ethos – but also because of the meanings that actors ascribe to filing

a claim in them. In other words, since resorting to the family court is perceived as

more defiant an act than resorting to the sharī‘a court, the consequences of this act are

indeed more severe. Both the rationale and the outcomes of forum shopping practices

are thus deeply entangled in the webs of meanings – to use Geertz's term – within

which actors live. Forum shopping cannot be understood without considering these

webs of meaning, and hence the rational choice assumptions of legal scholars are

flawed.

The fourth and last conclusion that can be drawn from this research has to do

with the well-known debate within socio-legal studies, concerning the effects of

courts on the resolution of disputes in general, and matrimonial disputes in particular.

Does the court's intervention shape the dispute and its outcomes, or does it have only

negligent effects? In the case study presented above, if women decide in advance

whether they wish to divorce or not, and then choose a court accordingly (as

suggested in the quotation above), then the tactical choice to appeal to one court or the

other is not that important. Such a choice may determine, perhaps, the nature of the

separation/conciliation arrangements, but not the continuation/ discontinuation of the

marital relations. Such a conclusion would be in line with the view of some

researchers, who believe that the impact of formal law on divorce negotiations

between spouses is negligent (see e.g. Erlanger et al. 1987; Jacob 1992).

However, based on countless observations of court hearings and conversations

with litigants (both men and women), I would estimate that many litigants do not

know exactly, in advance, whether they want a dissolution of the marriage or

matrimonial reconciliation. Often people are angry with their spouses; they may be

vindictive, or they may want to teach their partners a lesson, but they have not made

22

up their minds to divorce. Many litigants, as far as I can tell, are confused about the

legal procedure. As a result, they tend to change their minds repeatedly, they are open

to persuasion, and they are very much affected by the qadi’s and the lawyer’s

suggestions.37

Moreover, they usually do not perceive the appeal to the court merely

in utilitarian terms: they want justice; they want recognition of their normative

behavior; and they may want public acknowledgment of the maltreatment that they

had suffered, in their view, in the hands of their spouse.

My impression of litigants’ behavior in the sharī‘a court in West Jerusalem is

therefore in line with the view that courts play a crucial role in determining the

outcomes of disputes, and that the development of disputes is often not determined in

advance, before the commencement of the legal procedure. In Mark Galanter’s (1983:

34) words, “courts not only resolve disputes, they prevent them, mobilize them,

displace them, and transform them”. This insight highlights, yet again, the need to

study forum shopping from a socio-legal perspective, which takes into consideration

the full range of social, cultural and political meanings and consequences of this

intriguing practice.

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